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ALJ 2019 EU Consumer Contract Law Directives and Ownership 101
out in the case at hand, âis to give effect to a property right which has been duly registeredâ56
(implying the premise that the registration was in fact a legitimate one, which is, however, not self-
evident given that the acquisition of ownership under Spanish law generally requires a valid âtitleâ
in the sense of a valid underlying obligation57). This leads AG Wahl to âthink it is relatively clear that
Directive 93/13 cannot be held to be applicable to the procedure at issue [i.e., a procedure type
(b)], which relates to the verification of rights in rem with a view to the exercise of those rights, and
not to the performance of a contract concluded between a consumer and a seller or supplierâ.58
The Court adopts this procedural distinction in shorter words.59
On the level of substantive law, a parallel distinction is drawn between (a) the mortgage contract
between bank and consumer and the security right based on this contract; and (b) the bankâs âright
of ownershipâ acquired as a result of the forced sale.60 In a similar pattern, as has been observed
in the procedural context above, this leads AG Wahl to conclude that, âsince the contract
supposedly containing the term presumed to be unfair ⌠was exhausted by the definitive transfer
of the immovable property âŚ, it no longer appears relevant to examine the need to prevent or
suppress the incorporation of such a termâ61 (disregarding, again, the possibility that under a
âcausalâ transfer system any defect in the underlying contract could prevent the transfer from
taking place62). Further, as the AG puts it, to authorise the court to examine the fairness of terms
of the mortgage agreement âwould involve calling into question ⌠a right in remâ63 which could
have been acquired by âa completely different entityâ.64 Accordingly, in the view of AG Wahl, âit
would appear to be contrary to the principle of legal certainty and security of property rights to call
acquired rights of ownership into question, on the basis of effectiveness of Directive 93/13, when
there is no longer any question of striking out an unfair term in a contract between a seller or
supplier and a consumer which continues to produce effects.â65 The CJEU follows this assessment
quite closely.66
This is a rather formal and concept-oriented way of reasoning: The procedure at hand is of a
specific category â type (b), not type (a) â, therefore reviewing the potential unfairness of a contract
term is not âappropriateâ. The character of the right involved â ownership â is of a specific nature
56 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 59.
57 For references regarding the âcausalâ transfer approach, see supra note 19. With regard to the distinction between
a âsummaryâ procedure and a final âplenaryâ procedure in Spanish procedural law, please note the clarifications
provided in section I.C. sub (ii) above. In the present case, the âtitleâ could be flawed by unfair contract terms or
violation of general rules of representation. For the latter aspect, see sections III.A. sub (iii) and III.C.2. sub (iii) and
(iv) below.
58 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 68.
59 Cf. CJEU, Case C-598/15 Banco Santander paras. 39â44.
60 This becomes evident from a combined reading of AG Wahl, Opinion on Case C-598/15 Banco Santander paras.
73â75 and 82â84. See also paras. 58â68 (where the distinction regarding substantive law runs parallel to the
procedural distinction discussed above).
61 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 75. For the view that âthe mortgage agreement is
extinguished, together with the mortgage itselfâ, upon the conclusion of the enforcement procedure, see also ibid.,
para. 65.
62 Again, see section I.C. sub (ii) and note 19 above.
63 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 82.
64 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 83.
65 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 84.
66 CJEU, Case C-598/15 Banco Santander para. 45, quoted supra at note 9.
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book Austrian Law Journal, Volume 1/2019"
Austrian Law Journal
Volume 1/2019
- Title
- Austrian Law Journal
- Volume
- 1/2019
- Author
- Karl-Franzens-Universität Graz
- Editor
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Location
- Graz
- Date
- 2019
- Language
- German
- License
- CC BY 4.0
- Size
- 19.1 x 27.5 cm
- Pages
- 126
- Keywords
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Categories
- Zeitschriften Austrian Law Journal